One of the first orders of business for the 112th Congress is for the new House to fulfill its campaign promise to pass a repeal of ObamaCare. This will be a vain effort, however, as repeal will likely die in the Senate. But even if repeal were to get through the Senate, President Obama would surely veto a repeal of ObamaCare.
The better way for ObamaCare to be struck down is not by repeal, but by appeal: appeal to the courts. A Supreme Court decision on the constitutionality of ObamaCare would set huge precedents having far-reaching ramifications. The end of the first major skirmish in the legal war came December 13 with U.S. District Judge Henry Hudson’s decision in Virginia v. Sebelius. For ObamaCare, Friday the 13th came on a Monday.
Created by the states, the federal government is a government of enumerated powers. The 10th Amendment makes this clear. But the Constitution does not specifically grant to the feds the power to do much of what they do. The feds therefore must find that power somewhere in the Constitution. So they invoke the Commerce Clause or the General Welfare Clause or something to justify what they do. But there must be limits to what the feds can do; otherwise America degenerates into just another totalitarian state. Where those limits are was the question before Judge Hudson, who ruled that the Minimum Essential Coverage Provision (Section 1501) of ObamaCare — better known as the “individual mandate” — is unconstitutional. Page 37 of Hudson’s decision:
Congress lacked power under the Commerce Clause … to compel an individual to involuntarily engage in a private commercial transaction, as contemplated by the Minimum Essential Coverage Provision. … The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers.
And then on page 38 Hudson delivers his coup de grâce: the individual mandate “exceeds the constitutional boundaries of congressional power.” On the day of Hudson’s decision, Ilya Shapiro of the Cato Institute (who filed two briefs in the case) wrote:
Indeed, not even in the infamous 1942 case of Wickard v. Filburn — when the Supreme Court ratified Congress’ regulation of what farmers grew in their backyards on the theory that such local activity, in the aggregate, affects national wheat prices — have courts faced such a breathtaking assertion of raw federal power. Even at the height of the New Deal, Congress did not attempt to force people to buy wheat to support the new national agricultural policy. [Emphasis added.]